Palm Coast attorney Marc Dwyer is of two minds about last week’s decision by a Florida appeals court invalidating the ban on openly carrying firearms.
On one hand, Dwyer, a criminal defense lawyer at Dwyer & Knight, found the ruling legally right and in line with history and current law since the U.S. Supreme Court liberalized the right to carry arms as an individual right in its 2008 Heller decision.
“The reasoning was that, historically, the right to bear arms meant to bear them openly. You didn’t have to carry them in some kind of concealed way or have any restriction,” Dwyer said. “The right was a fundamental right. There was no rational basis for you being forced to be restricted on how you bear arms.”
On the other hand, he says there’s “going to be an uptick in crime” as a result. “As a criminal defense lawyer, I see so many cases where a fight in the parking lot or whatever turns into a felony offense because somebody has a gun or waves a gun,” Dwyer said. “Now that it just openly there, it’s very easy for somebody to accuse somebody of using that, and that turns from just regular assault to aggravated assault.”
He does not see the two positions as incompatible: the law had to be interpreted correctly, and it was. But it will have consequences. “It will just be very interesting seeing how we deal with that change, as a state and a society,” Dwyer said.
The greater majority of states have one form or another of open carry. The exceptions were Florida, California, Connecticut and Illinois. Florida is now off that list, and to some extent had been falling off that list gradually, with open carry allowed when hunting or fishing, and during natural disaster emergencies.
Flagler County Sheriff Rick Staly is not concerned about the decision’s effects. For starters, he considered the ban on open carry rather diluted in the state already. “If you had a fishing pole and you told us that you were heading to fish, you could open carry,” he said. “So we already had it.” (Staly laughed when asked what the connection was between a fishing pole and carrying a gun. “I don’t know. That’s what the legislature did,” Staly said. “I guess, to defend yourself against snakes or critters.”)
“I really don’t think it’s going to change anything,” Staly said. “We have concealed carry without a permit now. Now we can have open carry without a permit as long as a person is legally allowed to carry it.” Convicted felons still can’t carry under any circumstances. They’re not even allowed to possess a weapon.
If an individual is committing a crime with a gun, the charge will be harsher. That’s not changing. Nor is the right to ban weapons in private businesses, schools, colleges, universities and public buildings, including the Government Services Building in Bunnell (and of course courthouses). The ruling doesn’t change any of that. Bandishing a firearm remains an offense.
“I don’t see it making the job more dangerous, or deputies unsafe, because if you’re a criminal and you want to carry a gun, there’s many ways you can get your hands on a gun in the black market,” the sheriff said. “I have always supported open carry. I haven’t been very super vocal about it, but I was never opposed to.”
The sheriff sees Florida returning to its former traditions, “like in the Wild West.” Dwyer agrees, if in more legalistic terms.
“Originally, Florida, like most states, held and believed that your right to carry meant open carry,” Dwyer said. “In fact, this state was originally against concealed carry. They deemed it more dangerous. They did not want people walking around, concealing their firearms” and going places where people didn’t know a weapon was in their midst.
Last week’s decision put it in blunt terms: Concealed carry “was regarded as the practice of the cowardly and the disreputable and as incompatible with the legitimate exercise of the right of self-defense,” the judge wrote. “Open carry, by contrast, was understood to be the manner of bearing arms that gave full effect to the rights secured by the Second Amendment.”
But, the court also found, “It is not enough to rely on a generalized tradition of firearms regulation, for at that level of abstraction almost any law could be sustained. Nor can the State blur the distinction between open and concealed carry without disregarding both the Court’s originalist framework and our Nation’s historical tradition. The historical record makes clear that open carry was regarded as the lawful and preferred mode of bearing arms, while concealed carry was viewed as dangerous to public safety and ineffective for self-defense.”
Dwyer cited an 1867 Florida case that established that the right to carry did not extent to the right to conceal a firearm. “So open carry was the law, was the traditional way that the right of the Second Amendment was viewed,” he said.
Florida changed that in 1987, enacting a ban on open carry. That law made it a second-degree misdemeanor to openly carry a weapon (punishable by up to sixty days in jail or a fine of up to $500).
The Florida Supreme Court in 2017 upheld the ban. In 2022, the U.S. Supreme Court in a 6-3 decision ruled New York’s restrictions on carrying guns unconstitutional. Florida’s First District Court of Appeal in Tallahassee relied on that decision to invalidate the state’s ban on open carry.
“No historical tradition supports Florida’s open carry ban,” Judge Stephanie Ray wrote in a 20-page opinion joined by Judges Lori Rowe and M. Kemmerly Thomas. “To the contrary, history confirms that the right to bear arms in public necessarily includes the right to do so openly. That is not to say that open carry is absolute or immune from reasonable regulation. But what the state may not do is extinguish the right altogether for ordinary, law-abiding, adult citizens.”
The case stemmed from a 2022 arrest in Pensacola. That Independence Day, Stanley McDaniels stood at an intersection in downtown Pensacola holding a copy of the Constitution in one hand, waving at cars with the other, and sporting a gun tucked in his pants, in a holster, visible to all. McDaniels had set up a camera on a tripod to record his activity, much in the style of activists testing the law, looking for attention, or a test case. He got his wish. When police officers arrested him, he cooperated and told them he intended to take the case to the Supreme Court, and for identification, he gave the officers his concealed carry permit.
He didn’t go to trial. The trial court convicted him as charged, sentenced him to probation and community service, but stayed his sentence pending the appeals court’s response to a question the trial court certified to the higher court, asking whether the 1987 statute was lawful.
If it was, it no longer is.
Dwyer found the court to go against the grain of conservative jurisprudence. “They say, we’re not going to be activists, we’re not going to determine the law. We’ll let the legislature do it,” Dwyer said. “But in this case, this court did it. But I would have argued the same way that the writer of the opinion wrote, I think she’s correct.”
The state is not waiting on the legislature to codify the decision. On Monday, Florida Attorney General James Uthmeier said open carry is “the law of the state.” He sent a directive to state attorneys to stop enforcing the open-carry ban, calling the First District’s decision “binding on all Florida’s trial courts.”
Just a thought says
Marc Dwyer said: “As a criminal defense lawyer, I see so many cases where a fight in the parking lot or whatever turns into a felony offense because somebody has a gun or waves a gun,” Dwyer said. “Now that it just openly there, it’s very easy for somebody to accuse somebody of using that, and that turns from just regular assault to aggravated assault.”
Are you saying if I have a holstered gun on my hip and and get charged with assault, I automatically am charged with aggravated assault?
Michael Cocchiola says
This is insane. It’s 1881 in Tombstone, Arizona, again.
Oh, wait! Open carry was banned in Tombstone and in towns across the Wild West. Open carry was the legal issue that the Earps and Doc Holliday used to attempt to arrest a group of Cowboys by the O.K. Corral, which led to three violent deaths that day. Many more died violently if you count the bloody feud that followed.
I would encourage all Florida citizens to immediately exit any venue – theaters, shopping, houses of worship – whatever – if you spot a Cowboy carrying a pistol, and let the manager know why you are leaving.
Remember one thing… any knucklehead who thinks they need to impress or intimidate those around them with a visible loaded pistol is lacking in judgment, maturity, common sense, and empathy. Those are the ones most likely to pull their gun on you.
DaleL says
The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State,…” Unregulated, unchecked carrying of firearms, whether concealed or openly, is not in accordance with the Amendment. The Amendment should be interpreted in a manner which does not ignore the need to regulate firearms.
Imagine if the Constitution had an amendment which said something like this: “…the right of the people to keep and drive vehicles, shall not be infringed.”
How high does the body count have to reach, before sanity prevails?
Edith Campins says
So now, my elderly neighbors, who can barely see, and can no longer drive will be able to walk around with their walkers and their guns in plain sight. ThinkI am kidding?
Concerned says
The consequences will be large and likely cause a blue wave in the state.
So I say go for it – keep making silly laws and watch how fast the seniors throw you under the bus in the next election to feel safe again, these are boomers after all, they will always vote for their own self interest and this will make them less safe. Republicans only won over the last decades here because the retired north didn’t want to pay taxes and came down here in droves to run from it and rewarded the GOP with reelection so long as the status quo continued, but they don’t want to live in a developing world either where they are unsafe and things are about to get very unsafe (regardless of opinions as there is much historical record demonstrating what happens when these laws go into effect) and seniors are amongst the most vulnerable community in the state and they control it too, so probably someone should have polled them to know what is obvious.
The consequences beyond greater loss of life and on state power structures will be a large economic downfall and by this time next year the Florida legislature will be enacting rules to allow curbing and restricting this new allowance because money is something they do care about and the states money will be drying up from this and all the other silly new rules like no vaccines required in schools.
Don’t forget, it’s all those pesky lefty elites that have the money and time off to visit Florida and pay for our roads, so they’ll not be coming here as much soon especially not the ones from abroad. Like it or not, we need them badly or expect state income tax in your future but at least we will have freedom the like of which even Braveheart will be jealous of.
And arguments about responsibe gun owners are soon to fall flat, we are in FL and there are no responsible owners of anything down here (don’t believe me then try to pet your neighbors pit bull), so plan on seeing young people walking around like it is “fortnight” with an AK47 strapped across there back and then let’s see how long it takes for advocates to change their tune about responsible gun ownership rights and so on.
This one will end badly and we should all prepare for that soon large decline in property values coming our way too.
Just copy and paste it says
I wish you well…
But there comes a time when each of us must consider whether a community’s aspirations, priorities, and cultural views, no longer reflect one’s own… this issue, and the ruling regarding it have convinced me that this is indeed such a time.
JimboXYZ says
Just me, the open carry moron is just as bad as the drug trafficker & criminals with their guns. At least the open carry moron is identifying thenmselves as a potential problem. I’ll avoid them, even if it means waiting them out to leave & let them get far enough away that they don’t matter. Let them be another’s problem. Gotta learn at a certain point in a lifetime when another is too stupid to have or be around. That it’s a bigger liability than asset for being secure. I think Staly knows that the open carry moron, most likely is the last criminal that will be involved in a mass shooting. The one’s he deals with are the felons that still have found a way to acquire a gun, that will be the one that causes FCSO the most issues.
True story, one open carry dude climbed out of his pickup truck at the gas station. I noticed he was holstered. I didn’t even want to pump gas that moment around him. I could tell he was one of those types that would carry that with him for the rest of his life & never use it, if he was even capable of not making a situation worse for ever needing to use it ?
Unarmed Citizen says
I would like the Sheriff to arrange very soon for a number of public sessions to explain what is now allowed and what is not. For example, what constitutes “brandishing” versus carrying in a holster. If someone has a gun in a holster but pulls it out to show it, should I call 911 if I feel at all anxious or threatened? What if the gun is legal but too big for a holster (eg a rifle or semiautomatic) how is it to be “carried” in a non threatening way? How many people together carrying openly is considered a “gang”? Should restaurants consider a method to allow customers to check guns at the door?
So many potential questions after 75 years of not worrying.
Steven M. Harris, Attorney-at-Law says
Attorney Dwyer’s comments for the most part either make no sense or are incorrect.
Skibum says
The legal malpractice and harm to its own citizens by morons in charge of this state is astonishing.
For those of you who would value an opinion from a career law enforcement officer now retired, regarding the newly minted open-carry law, I’ll offer my take on it.
INSANE!!! DANGEROUS!!! ILL-ADVISED!!!
We keep hearing from the far right crowd who love, adore, cherish and worship their guns more than life itself (and certainly much more than the lives of all of the many thousands of murdered school children in America), that all that is needed is “a good guy with a gun to stop a bad gun with a gun”.
Do people have any concept of the dangers that law enforcement officers face when responding to a 911 call? Do people know that one of the very first questions emergency dispatchers ask callers is if there are any weapons involved, and for good reason!
When a law enforcement officer responds to a call for service, or even during what people like to call a “routine” traffic stop, and observes an individual who is armed with a weapon, the intensity and threat level toward that officer is heightened dramatically because nobody, not law enforcement, not a psychologist, not even a parent, can look someone in the eye who is carrying a weapon and determine if that individual is a threat to the officer or others.
Absolutely no way to tell who is a “good guy with a gun” from a “bad guy with a gun”. And if there are multiple people with guns, maybe it is a victim who is trying to stop a criminal, but it could just as easily be more than one armed criminal, which makes it even more urgent for a law enforcement officer to take immediate action to protect themself from harm.
Too many innocent people with guns who thought they were helping to apprehend a criminal or just afraid for their lives when a crime occurred have been mistakenly killed by law enforcement officers, who did not know the individuals were the “good” guys and posed no threat to them.
Law enforcement officers have the right to do their jobs and return home to their families afterward. They don’t have to wait until they have been shot to determine whether or not an armed individual is a danger to them! This open carry law just made our communities more dangerous for law enforcement, and more dangerous for those who now are going to start carrying guns in public openly.
I have to be honest and tell everyone that it was bad enough when FL passed a previous, very stupid law making it perfectly legal for people to carry concealed firearms without first having gone through the process and obtaining a concealed carry permit. At least then we all knew that guns were not visible to everyone.
For those who are under the mistaken impression that the open carry law is a good thing, please listen to reason. The more guns that are being carried around in public, the more dangerous it is for EVERYONE! If you think, somehow, that having more guns makes society safer, all I need to prove that is a complete falsehood is to point out that during the wild west days, practically every adult man, and many adult women also carried at least one and usually more than one gun on them at all times. There is a reason why we refer to that period as the “wild” west, and it was much more dangerous back then with shootings daily, even hourly in some towns. Alcohol, reckless abandon, gambling, disputes of all types, get your gun and solve the problem by shooting the person you didn’t like or disagreed with.
Is that the kind of society you REALLY want to live in??? We already have way too many disagreements, over things as menial as misunderstandings, honking horns when someone merges in front of another car, or takes someone’s parking space, or an e-bike riding teenager going too fast and not paying attention to other traffic, etc., etc., etc.
Children are already taking their parents’ unsecured guns from home, hiding them in their backpacks and taking the guns into schools. This already happens when students have had a disagreement or a fight with another student, or when they want to appear to be a dangerous thug and threaten others. They learn this unacceptable behavior from watching and learning from adults, who should be much better role models!
I can tell you for certain that the absolute truth is when someone is armed with a gun, they almost always have a sense that they can be more assertive, many times more AGRGESSIVE when involved in disputes precisely because they feel emboldened by the fact that if anything bad happens, they have their gun at the ready. If more people were not carrying guns around with them, they would be much more circumspect and careful, avoiding problems and disputes that otherwise would have the potential for getting out of control. They would call 911 and let the law enforcement professionals deal with it instead, which is always a much better option anyway.
I know there are many who would argue with me, and that’s ok. Who am I to be giving out this view… other than someone who spent an entire career in law enforcement dealing with lots of different kinds of people for decades. Some people are going to say or think they know better. So go ahead if you want to be bold enough to walk around in public with a gun shown to every Tom, Dick and Harry out there. The idiot FL attorney general says you can do that… it is your constitutional right, at least for now.
But it is a very BAD idea, and you may find out the hard way exactly how bad that decision might be. One of life’s lessons for those who choose not to listen to sage advice from a voice of experience.
Listen to victims says
You mean the group that commits violence just took down the study that showed right wingers commit the most violence by a long shot…
I agree all protestors should be well armed! Who’s wearing masks ? The fascist that want to take peoples rights? Expose them !Release the Epstein files! Trump will get us to fascism and a climate apocalypse!! Unite and fight for better future!!!